A lawyer for former White House chief of staff Mark Meadows argues in a letter to the House committee investigating the Jan. 6 attacks that Meadows shouldn't be subject to criminal charges of contempt of Congress.
The committee is expected to vote Monday night to recommend charges against Meadows, who said last week that he would no longer cooperate with the investigation.
The lawyer, George J. Terwilliger III, said a contempt referral would be contrary to law, "because a good-faith invocation of executive privilege and testimonial immunity by a former senior executive official is not a violation" of the statute, especially when the person is relying on the advice of counsel.
Terwilliger, who was deputy attorney general in the administration of President George H.W. Bush, argues in the letter that a criminal referral would violate the "long-held and well-established separation of powers principles."
The letter makes a series of arguments for why executive privilege should shield close advisers to the president from having to testify before Congress. But it doesn't tackle the question of why executive privilege should apply to a former official when the current president isn't invoking it — a central question in the legal fight over former President Donald Trump's records.
The committee alleged Sunday in a report supporting the contempt referral that Meadows wrote an email the day before the riots that National Guard troops would keep Trump's supporters safe on Jan. 6. The recipient of the email isn't identified.
"Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to 'protect pro Trump people' and that many more would be available on standby," the report said.
Terwilliger, who didn't address the report about the email in his letter, declined to comment.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled that although Trump retained some authority to claim executive privilege, it wasn't strong enough to overcome President Joe Biden's decision that Congress has a legitimate need for the material.
"The executive privilege for presidential communications is a qualified one that Mr. Trump agrees must give way when necessary to protect overriding interests. The president and the legislative branch have shown a national interest in and pressing need for the prompt disclosure of these documents," Judge Patricia Millett wrote for the court.
In addition to arguing that executive privilege applies, Terwilliger makes a more narrow argument for why Meadows can't be guilty of a crime — that he relied on his lawyers.
"A senior executive official who refuses to provide privileged information or who refuses to testify based on a good-faith belief that their legal position is one that is required and supported by lawful authority does not 'willfully' default on a congressional subpoena," Terwilliger wrote.
Legal experts say it's an open question whether the "advice of counsel" defense can apply here. It is also being invoked by Steve Bannon, who faces criminal contempt charges brought by the Justice Department after he, too, refused to honor a subpoena from the Jan. 6 committee.